from the someday-the-NSA-will-get-a-handle-on-this-whole-'managing-data'-thing dept

The NSA is once again deleting data it's been ordered to retain for ongoing lawsuits. This isn't the first time. The Jewel v. NSA lawsuit -- which is nearing its tenth year in litigation -- has been ground zero for multiple NSA screw-ups. The shutdown of the Section 215 program resulted in some perhaps deliberate confusion within the agency. At first, the NSA decided it should just purge its 215 collections, taking with it anything that might be used against it in the Jewel case. Then it decided it would keep everything, giving it the opportunity to trawl pre-reform data banks for anything it might find useful, while simultaneously stiff-arming plaintiffs' requests for surveillance records.

[T]he NSA told U.S. District Court Judge Jeffrey White in a filing on Thursday night and another little-noticed submission last year that the agency did not preserve the content of internet communications intercepted between 2001 and 2007 under the program Bush ordered. To make matters worse, backup tapes that might have mitigated the failure were erased in 2009, 2011 and 2016, the NSA said.

That's the problem with collecting all the stuff. Where do you put it? Sooner or later, you have to get rid some stuff to make room for the new stuff. But rest assured, the NSA feels just awful it may have deleted crucial evidence.

“The NSA sincerely regrets its failure to prevent the deletion of this data,” NSA’s deputy director of capabilities, identified publicly as “Elizabeth B.,” wrote in a declaration filed in October. “NSA senior management is fully aware of this failure, and the Agency is committed to taking swift action to respond to the loss of this data.”

In the update Thursday, another NSA official said the data were deleted during a broad, housecleaning effort aimed at making space for incoming information.

Evidence spoliation d/b/a performance enhancements. That's the NSA way. The NSA claims potential evidence wasn't "targeted" but possibly was deleted. In other words: incidental deletion. This follows the NSA's assertions possible evidence was secured and fully backed up. Supposedly magnetic tapes containing communications and metadata pertinent to the Jewel case had been physically set aside and segregated from the NSA's other backups and data collections. That now appears not to have been the case.

The NSA is “preserving magnetic/digital tapes of the Internet content intercepted under the [PSP] since the inception of the program,” [NSA official Miriam P.] wrote, adding that “the NSA has stored these tapes in the offices of its General Counsel.”

The agency now says, “regrettably,” that the statement “may have been only partially accurate when made.”

The NSA is now making "extraordinary" efforts to recover the stuff it said wouldn't be erased. As the EFF (representing the plaintiff) has pointed out (repeatedly), missing evidence should be presumed to be favorable to the person asking for it to be handed over. Anything the NSA can't come up with should bolster the plaintiff's case. The NSA can't plausibly argue the plaintiff was never targeted or swept up incidentally in its collections if it doesn't have a copy of this data that shows otherwise.

Any person offering up shrugs and apologies instead of requested evidence could expect to be sanctioned by the court. Somehow I doubt the NSA will be subject to the same rules that apply to everyone else.

from the doing-nothing-24/7 dept

One of the longest-running lawsuits over NSA surveillance is still no closer to a final decision, but at least we may get to take a look at a few more Section 702 documents. Jewel vs. NSA (filed in 2008) predates the Snowden leaks by five years and, judging by the speed of the government's responses, will probably hit the 10-year mark before everything is sorted out.

In 2016 the Court had ordered that the plaintiffs could seek discovery. After over a year of government stonewalling, the Court has now ordered the government to comply with a narrowed set of discovery requests by August 9, 2017. The discovery is aimed at whether plaintiffs' communications were subject to the mass NSA program tapping into the Internet backbone called Upstream. The court also ordered the government to file as much of its responses as possible on the public court docket.

Whether or not most of these documents will make their way into the public eye remains to be seen. But the court's order [PDF] contains a hypothetical indicating it's expecting a lot of production.

By 6-2-17: Government counsel to inform the Court if, hypothetically, a career law clerk was granted security clearance, would she be able to view all documents, including those already produced in classified submissions.

The court will still handle some of the discovery behind closed doors, but it's hoping to keep itself from being buried in paperwork. The order tells the government to move forward with its production in phases. It also asks the plaintiffs to narrow their discovery request "significantly." By August, the court would like to have this wrapped up and the case moving forward again.

Of course, this order has been delivered to a government that has argued no one has standing to challenge domestic surveillance and one that conveniently interpreted the Section 215 shutdown as permission to destroy evidence. The DOJ will continue to do everything it can to stem the flow of information to the public. It already spent a year ignoring the court's production order. I'm sure it will find a way to turn two months of discovery obligations into a much longer order -- perhaps even long enough to keep more Section 702 info out of the public's hands until after it obtains the year-end renewal it so badly wants.

from the this-could-get-interesting dept

Jewel v. NSA is the EFF's big case against the NSA over its surveillance efforts. It predates the Snowden revelations (from a lot), and stems from that time an AT&T technician, Mark Klein, just walked through the doors of the EFF to provide the organization with evidence that AT&T basically routes a bunch of data through NSA filters for "upstream" collection (part of the NSA's "702" collection program). The case has gone through a bunch of permutations and procedural issues, many of which have not gone the EFF's way, unfortunately. However, the latest is a big one: the judge has said that EFF can move forward with discovery efforts, basically requiring the government to turn over a bunch of information:

This marks the first time a party has been allowed to gather factual evidence from the NSA in a case involving the agency’s warrantless surveillance. The government had fought all our requests to proceed with this lawsuit, arguing that the state secrets privilege protects it against both discovery and liability. Judge White previously rejected that argument for our statutory claims under the Wiretap Act, the Foreign Intelligence Surveillance Act, the Electronic Communications Privacy Act, and the Stored Communications Act. This ruling affirms Judge White’s previous decision and opens the door for discovery.

This is an important step forward to lifting the cloak of secrecy that has thus far shielded the NSA from judicial scrutiny, and EFF looks forward to finally getting to the nuts and bolts of this extraordinarily important lawsuit.

You can read the ruling here, which is mostly just procedural details. Still, given how successful the US government has been in basically killing off any and every lawsuit that attempts to challenge its surveillance, getting to move forward on discovery is a big, big deal. Kudos to the EFF team.

from the constitutional-fun dept

It's taken many years, but one of the EFF's longstanding cases against the NSA has finally reached an important milestone: exploring the 4th Amendment question raised by the NSA tapping the internet backbone. This is part of the Jewel v. NSA case that has been going on for years. Back in February (after a lot of procedural back and forth on other issues), the district court rejected the 4th Amendment argument, basically toeing the government's "but... but... national security!" line. Not surprisingly, the EFF disagreed with the court and appealed to the 9th Circuit appeals court.

The appeal is not just about the 4th Amendment question, but also about the question of standing. Like many surveillance cases, the courts have given the government a bit of a "get out of jail free" card by not letting anyone sue unless they can prove that they, specifically, were swept up by the surveillance. The lower court used this to reject the EFF's case as well, arguing that the evidence it presented was too "speculative." On appeal, the EFF argues this is ridiculous, as you can see in the EFF's opening brief:

First, the court erred in concluding plaintiffs lacked standing. Plaintiffs’ evidence, including extensive government admissions, shows that at least some of their Internet communications have been intercepted, copied, and searched, thus establishing their injury and giving them standing. Moreover, because the government defendants put in no evidence creating a genuine factual dispute regarding plaintiffs’ standing, plaintiffs are entitled to summary judgment on standing.

And then we get to the meat of the 4th Amendment argument:

Above all, the evidence demonstrates that plaintiffs are entitled to summary judgment on the merits of their Fourth Amendment claim. The suspicionless, warrantless interception and copying of plaintiffs’ Internet communications is an unconstitutional seizure, and the subsequent content searching of some of those communications is an unconstitutional search.

Later, the EFF filing leans heavily on last year's Supreme Court ruling in the Riley case which found mobile phone searches without a warrant to be a 4th Amendment violation:

The Supreme Court recently affirmed that the government’s search and seizure of digital information implicates core Fourth Amendment values and triggers the warrant requirement. Riley, 134 S.Ct. at 2495 (“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”). The Court specifically noted the protected privacy interests in Internet browsing: “Internet search and browsing history . . . could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.” .... The Court went on to detail how a person’s digital information because of its breadth and depth gives a wide-ranging picture of a person’s most private thoughts and actions—even beyond what a general search of their home might reveal....

The Fourth Amendment privacy interests in digital information that the Supreme Court recognized in Riley are fully applicable to the Internet activities of plaintiffs that the government is seizing and searching— including emails, web browsing and searching, live chat, voice calls, social networking, photos, and videos—because of “all they contain and all they may reveal.”... Indeed, the Court noted that much of the digital information it protected in Riley is increasingly not stored on smartphones themselves but in the Internet “cloud,” with phones
used to access the information over the Internet.... Because communications between smartphones and the Internet “cloud” often transit the Internet backbone, those communications are subject to the NSA’s interception.

There's a lot more in the filing that is well worth reading, and you can expect the Justice Department to attack basically all of it. Hopefully the 9th Circuit sees through it and recognizes the core principles at play here. It is difficult to believe that when the Founders drafted the 4th Amendment, that they didn't think it applied to sniffing up basically every communication "just in case."

from the keep-appealing dept

One of the key ongoing lawsuits challenging the NSA's warrantless surveillance of Americans and their internet usage is the Jewel v. NSA case that actually predates the Snowden revelations. The specific case involves challenges to the so-called "upstream collection" under Section 702 of the FISA Amendments Act. Specifically, this is about the NSA tapping telco fiber directly (as Mark Klein revealed concerning AT&T) and sifting through all the traffic for "relevant" (defined loosely) information. The EFF is handling the case against the government in Jewel, and argued that such collection violates the 4th Amendment. Unfortunately, the court has now rejected that argument, refusing to grant summary judgment to the EFF, instead granting partial summary judgment to the US Government.

Unfortunately, as in past attempts to challenge US surveillance, much of the issue comes down to one of standing. The individuals suing don't have evidence that their personal information was collected, so they don't necessarily have standing to sue (so says the US government). Of course, even when there is evidence, the government often has a way to weasel out of the legal challenge anyway. And, unfortunately, we're right back in that situation with the Jewel case. Since this case was over the AT&T internet taps, the EFF noted that AT&T customers should have standing, but the court isn't convinced that's enough:

However, the question whether Plaintiffs can establish standing to pursue their Fourth
Amendment claim against the Government Defendants for constitutional violations goes beyond
whether they, as individuals and AT&T customers with Internet communications, can proffer
evidence of generalized surveillance of Internet communications. Although the public and
admissible evidence presented establishes that Plaintiffs are indeed AT&T customers with
Internet communications and would fall into the class of individuals surveilled, the evidence at
summary judgment is insufficient to establish that the Upstream collection process operates in
the manner in which Plaintiffs allege it does.

In their attempt to establish the factual foundation for their standing to sue on their
Fourth Amendment Claim, Plaintiffs rely in large part on the declarations of Mark Klein and
their proffered expert, J. Scott Marcus, as well as other former AT&T and NSA employees to
present the relevant operational details of the surveillance program. Plaintiffs assert that the
declarations support the contention that all AT&T customers’ Internet communications are
currently the subject of a dragnet seizure and search program, controlled by or at the direction
of the Government. However, having reviewed the record in its entirety, the Court finds the
Plaintiffs’ evidence does not support this claim.

Plaintiffs principally rely on the declaration of Klein, a former AT&T technician who
executed a declaration in 2006 about his knowledge and perceptions about the creation of a
secure room at the AT&T facility at Folsom Street in San Francisco. However, the Court finds
that Klein cannot establish the content, function, or purpose of the secure room at the AT&T
site based on his own independent knowledge.... The limited
knowledge that Klein does possess firsthand does not support Plaintiffs’ contention about the
actual operation of the Upstream data collection process. Klein can only speculate about what
data were actually processed and by whom in the secure room and how and for what purpose, as
he was never involved in its operation. In addition, Plaintiffs’ expert, Marcus, relies exclusively
on the observations and assumptions by Klein to formulate his expert opinion. Accordingly, his
testimony about the purpose and function of the secure equipment at AT&T and assumed
operational details of the program is not probative as it not based on sufficient facts or data.... The Court finds that Plaintiffs have failed to proffer sufficient admissible
evidence to support standing on their claim for a Fourth Amendment violation of interference
with their Internet communications. In addition, without disclosing any of the classified content
of the Government Defendants’ submissions, the Court can confirm that the Plaintiffs’ version
of the significant operational details of the Upstream collection process is substantially
inaccurate.

And, unfortunately, the court further accepts the DOJ's claims that going any further in this case will lead to the terrorists winning or something:

In addition, having reviewed the classified portion of the record, the Court concludes
that even if the public evidence proffered by Plaintiffs were sufficiently probative on the
question of standing, adjudication of the standing issue could not proceed without risking
exceptionally grave damage to national security. The details of the Upstream collection process
that are subject the Government’s assertion of the state secrets privilege are necessary to
address the defenses against Plaintiffs’ theory of standing as well as to engage in a full and fair
adjudication of Government Defendants’ substantive defenses against the Claim. The Court has
reviewed the classified brief submitted by the Government and finds that its legal defenses are
persuasive, and must remain classified.

Disclosure of this classified information would risk informing adversaries of the specific
nature and operational details of the Upstream collection process and the scope of the NSA’s
participation in the program. Notwithstanding the unauthorized public disclosures made in the
recent past and the Government’s subsequent releases of previously classified information about
certain NSA intelligence gathering activities since 2013, the Court notes that substantial details
about the challenged program remain classified. The question of whether Plaintiffs have
standing and the substantive issue of whether there are Fourth Amendment violations cannot be
litigated without impinging on that heightened security classification. Because a fair and full
adjudication of the Government Defendants’ defenses would require harmful disclosures of
national security information that is protected by the state secrets privilege, the Court must
exclude such evidence from the case.

And, with that, the judge, Jeffrey White, rejects the 4th Amendment claim. I'm guessing that the EFF will appeal.

from the because-nsa dept

The big Jewel v. NSA case is still moving forward. This is the pre-Snowden lawsuit against the NSA over its tapping of fiber optic cables. We now understand that this was part of what the NSA refers to as "upstream collection" under Section 706 of the FISA Amendments Act, but most of us recognize it for what it really is: and that's snooping on tons of internet backbone traffic in the hopes of finding something interesting. This broad "upstream" collection is immensely problematic, and the Justice Department has bent over backwards time and time again trying to kill the case -- without success so far. The EFF has recently filed its latest reply brief (pdf) in support of its motion for a partial summary judgment, responding to the government's (not surprising) opposition (pdf). The EFF has a clear summary of its arguments on its blog, which is worth reading. Here are two key arguments. First, making it clear that snooping on internet traffic is a form of "seizure" raising the 4th Amendment question:

We explain that the act of copying entire communications streams passing through splitters at AT&T facilities is an unconstitutional seizure of individuals’ “papers” and “effects.” This should be obvious—our “papers” today often travel over the Internet in digital form rather than being stored in our homes—but the government contends that unless it physically interferes with individuals’ possession of some tangible property, it cannot “seize” anything. This is not so. If it were true that conversations could not be “seized” except by taking possession of physical objects, all warrantless wiretapping (where “recording” is a form of “copying” communications) would be constitutional.

This argument is especially troubling in the Internet age, since the government appears to be claiming that it could make a copy of all Internet communications as long as it did so without physically taking possession of any storage media. No way. The Fourth Amendment doesn’t protect just tree pulp or hard drives. It protects your ability to have control over who sees the information carried in your papers and effects. And by copying everything, the government is plainly “seizing” it.

And also, hitting back on the ridiculous "special needs" argument that the DOJ really likes these days:

The government's dangerous “special needs” argument, which apparently the Foreign Intelligence Surveillance Court of Review adopted with regard to the targeted surveillance objected to by Yahoo!, is something the Internet public needs to be aware of. The government is essentially claiming that because there are bad foreign actors online, it should get a free pass from complying with the Constitution whenever it claims a “foreign intelligence” need, and that it gets to do so regardless of how many innocent Americans may be caught up in its net. Or to put it more bluntly, the government is basically saying that its intelligence needs should trump the Constitution, and that no one using the Internet should be able to have a private conversation or engage in private web surfing or information gathering without the government having access.

However, there's another separate filing which the EFF's blog post just mentions in passing, but which I think may be even more interesting. It appears that, in addition to its initial opposition brief, the government also filed some other information in secret, raising serious due process questions. Thus, EFF is looking to strike those secret filings (pdf) from the record:

The
filing of an ex parte, in camera memorandum of points and authorities is improper. The government
has submitted the classified declaration of “Miriam P.”, and there is no legitimate reason for the
government to supplement that secret evidence with the aid of a secret brief that it has privately
provided to the Court. The government has repeatedly argued its assertion of the state secrets
privilege in public briefing throughout the history of this case. Moreover, to the extent the secret
brief argues the merits of plaintiffs’ Fourth Amendment claims, it has no possible justification at all.
The government has not attempted to demonstrate that any possible good cause exists that could
justify the extraordinary violation of due process created by its submission of private, secret legal
argument—let alone that such good cause exists here.

As the filing notes, even in cases where parties are allowed to file documents in secret, they first need to effectively get permission from the court, and the DOJ didn't bother -- it just "nonchalantly" waltzed in and gave the court the documents in secret.

Even if a secret submission
had some legitimate basis, the government was required to make an administrative motion pursuant
to Local Rule 7-11 seeking leave to file a secret ex parte, in camera brief before it filed any such
brief. On such a motion, the government would have had the burden of demonstrating both legal
authority and good cause to support its secret filing. Instead, the government nonchalantly filed its
secret ex parte, in camera brief here as if it were a matter of right, depriving plaintiffs of any
opportunity to oppose the motion. Plaintiffs would have opposed any such motion. Because the
government’s conduct prevented plaintiffs from objecting prior to the filing of the government’s
secret brief, plaintiffs now move to strike it after the fact.

Plaintiffs are aware of no statute, rule, or other authority permitting the government to file
legal argument to which plaintiffs do not have access and to which plaintiffs cannot reasonably
respond, as it has done here, nor is there any good cause for filing a secret, ex parte, in camera brief
here. Although there is authority allowing the filing of an ex parte, in camera official factual
certification in support of a claim of state secrets privilege, that authority does not permit the
government’s secret legal briefing here. And in fact, there is good cause to reject the government’s
filing: the government’s filing of a secret brief is contrary to the state secrets privilege doctrine and
to fundamental notions of due process....

Yet again, we see how the government handles these kinds of cases. Deny, obfuscate and hide. It's as if the DOJ has such a weak argument that it really doesn't want to make it publicly, because it knows it will lose.

from the and-[local]-god-help-you-if-you're-a-foreign-citizen dept

With some of the proceedings unsealed in the EFF's long-running Jewel vs. NSA lawsuit, more details can finally be exposed. Not that what's already been exposed hasn't been damning enough. Over the past several months, the DOJ has run interference for the NSA, traveling from courtroom to courtroom, destroying and saving (or at least pretending to...) collected data amongst a flurry of contradictory orders.

Not that it ultimately mattered. The NSA just kept destroying relevant evidence, claiming the system was too complex to do anything with but allow to run its course. Evidence would be destroyed at the 5-year limit, no matter what preservation orders were issued. The NSA, of course, has a vested interest in destroying evidence that its 215 and 702 programs collect the data and communications of Americans. Thanks to Snowden's leaks, it can no longer pretend it doesn't. But despite this, the DOJ still claims Section 702 targets only foreigners and American suspects located outside of the US.

The mock concern about compliance with court orders was a hustle. The DOJ wants as much evidence that might be useful to plaintiffs gone as swiftly as possible. Thanks to the unsealing of Jewel court documents, the EFF can now relate that the DOJ's efforts went much further than simply letting aged-off collections expire. It also actively tried to change the historical record of the Jewel case, as Mike covered here recently.

Citing classification concerns, the DOJ sought to editorialize its statements to the court, removing them (not redacting them) from the public record… and it didn't want anyone to find out. Take a moment to soak in the audacity of this request, made by the US government in a federal court.

If the judge had sided with the DOJ, there's a good chance some of the transcript embedded below would have gone missing… forever. Even after the documents were eventually unsealed, whatever the government had managed to convince the court was "classified" would no longer exist -- despite the fact that one week earlier these statements were made in an open court room.

It's likely that the judge's decision to notify the plaintiffs changed the DOJ's mind about retconning its own statements. It's a good thing nothing's missing. What's in there is terrible. The DOJ basically mounts the argument that no plaintiff should ever have standing to challenge either the Section 215/501 or 702 programs, unless they are Verizon Business customers… and even then they should only be able to challenge the former. (Apologies for the all caps, but that's the way the court transcribed it.)

AND WE SET THIS FORTH, AGAIN, FOR THIS COURT IN OUR MOST RECENT FILING IN WHICH THE DNI ASSERTED THE STATES SECRET PRIVILEGE AND EXPLAINED TO THE COURT THAT NOTWITHSTANDING ALL THESE TERRIBLE DISCLOSURES THAT OCCURRED OVER THE PAST YEAR -- IN FACT, THIS IS THE ONE YEAR ANNIVERSARY -- DISCLOSURES THAT WE ARE CONVINCED THAT HAVE SERIOUSLY HARMED THE NATIONAL SECURITY OF THIS COMPANY, WE HAVE CONTINUED TO PROTECT THE IDENTITY OF PARTICULAR TELECOMMUNICATION CARRIERS THAT ARE ALLEGED TO HAVE ASSISTED THE NSA, NOT ONLY IN THE SECTION 215 PROGRAM, WHICH WAS AT ISSUE IN THE CASES YOU CITED, BUT ALSO IN THE PRESIDENT'S SURVEILLANCE PROGRAM, ACTIVITIES WHICH ARE AT ISSUE IN JEWEL AND SHUBERT, AS WELL.

SO WE HAVE NOT CONCEDED THAT STANDING COULD BE FOUND BASED ON THE MERE EXISTENCE OF THE BULK TELEPHONY META DATA PROGRAM, IF THAT IS YOUR QUESTION.

Got that, citizens? Because we have made the choice to protect telcos withhold information, you will only have standing to challenge these programs under very narrow circumstances. The government is looking out for the best interests of its partners in surveillance. The rights of citizens are much further down the list.

And while acknowledging that it has withheld info on the telephony metadata program, the DOJ's lawyers simultaneously claim the plaintiffs should have been prevented from amending their case to include the recent Section 702 revelations, because that program has supposedly been out in the open and fully transparent since 2008.

SO I HARDLY KNOW WHERE TO BEGIN. BUT I WILL START WITH THIS. FIRST OF ALL, THE CONTENTION THAT 702 DID NOT EXIST WHEN THE COMPLAINT WAS FILED IS A FALSEHOOD. 702 WAS ENACTED IN 2008, IN JULY OF 2008, AS PART OF THE FISA ACT AMENDMENTS OF 2008.

NOT ONLY DID IT EXIST BEFORE THIS COMPLAINT WAS FILED, THE JEWEL PLAINTIFFS KNEW ABOUT IT, BECAUSE IT'S PRECISELY WHY THEY FILED SUIT. THAT LEGISLATION CREATED IMMUNITY FOR THE TELECOMMUNICATION COMPANIES.

THE ACLU OVER IN NEW YORK, KNEW QUITE WELL IT EXISTED. THEY FILED A COMPLAINT, I THINK, THE DAY IT WAS ENACTED INTO LAW. AND THAT MADE A LOT OF HEADLINES, AND IT WAS LITIGATED. AND IT WAS ALL, ALL PUBLIC. NO SECRET PROGRAM. AND IT WAS OUT THERE. SO THAT STATEMENT IS JUST NOT TRUE.

THE SECOND THING THAT'S NOT TRUE IS HER PROGRAM DESCRIPTION. 702 IS A PUBLIC STATUTORY PROGRAM. IF YOU LOOK AT THE AMNESTY INTERNATIONAL DECISION, IT DETAILS HOW THAT PROGRAM OPERATES. AND SO THAT IS THE SOURCE OF WHAT SHOULD BE THE COURT'S UNDERSTANDING FOR THIS PROGRAM AND HOW IT OPERATES.

Completely disingenuous. The program was never "out in the open." It protected telcos and helped codify warrantless wiretapping, but there was never any indication given that it also allowed the NSA to tap into the internet backbone and siphon off communications of Americans. And it certainly wasn't presented as a tool to be used as an untargeted dragnet.

This is only a small part of a document the DOJ wanted to selectively edit and present later as an untouched factual record of a federal hearing. The government claims no one has standing because everything related to the NSA's programs is "rank speculation" -- basically pretending the "terrible disclosures" never happened. In the same breath, it claims the programs have always been transparent and completely above board, therefore no one should be able to amend their complaints when additional info is exposed by leakers.

The government not only wants it both ways, but it has the breathtaking gall to ask to touch up its talking points after delivering them. After a dozen attempts to wrap up this post with something that pithily highlights the anger the government's editing attempt (and the horrible arguments contained in the transcript) has generated in me, I'm left with little more than this: FUCK THE DOJ -- it and every agency it oversees.

It witholds information about the companies involved in its dragnet surveillance programs, covers up everything else and pretends unauthorized disclosures "don't count," at least not when it comes to citizens being granted standing. It could easily clear up this "rank speculation," but it would rather shelter telcos from irate customers and give itself an easy way to get lawsuits dismissed. Then it spins everything around and claims the plaintiffs are misrepresenting the programs to the court -- something the DOJ has actually done itself -- and should not be allowed to amend complaints to reflect additional evidence gleaned from leaked documents.

Hey, I'm sorry the leaks have made it harder for these agencies to do whatever the hell they want, but they are all part of a government that's supposed to be accountable to the citizens picking up the check. But when faced with unhappy citizens and their diminished rights, all the DOJ's lawyers can say is that the public doesn't know shit and has no right to question the government's activities.

The government has somehow managed to come to a conclusion others reached weeks ago -- there's more than one leaker out there. GOOD. Burn it down. In the DOJ's hands, the government isn't by or for the people. It's despite the people. The DOJ can't be trusted to protect the balance between privacy and security. As it sees it, what the public doesn't know will likely hurt it, and it's damned if it's going to allow citizens to seek redress for their grievances.

from the literally-rewriting-history dept

The EFF has revealed a very disturbing attempt by the US government to flat out secretly delete portions of a public court transcript over the belief that its lawyers may have slipped up and revealed classified information. This came from the recent hearing in the longstanding EFF case Jewel v. NSA, regarding a challenge to NSA surveillance (which began long before the Snowden revelations). After the hearing ended, apparently things took a turn for the bizarre, in which the government quietly notified the judge that it believed one of its attorneys had accidentally revealed classified information during the (very open) hearing, and hoped to remove that information from the transcript, and pretend that it never happened. The EFF fought it, and eventually the government backed down (perhaps realizing it hadn't really revealed anything):

On June 6, the court held a long hearing in Jewel in a crowded, open courtroom, widely covered by the press. We were even on the local TV news on two stations. At the end, the Judge ordered both sides to request a transcript since he ordered us to do additional briefing. But when it was over, the government secretly, and surprisingly sought permission to “remove” classified information from the transcript, and even indicated that it wanted to do so secretly, so the public could never even know that they had done so.

We rightly considered this an outrageous request and vigorously opposed it. The public has a First Amendment right not only to attend the hearing but to have an accurate transcript of it. Moreover, the federal law governing court reporting requires that “each session of the court” be “recorded verbatim” and that the transcript be certified by the court reporter as “a correct statement of the testimony taken and the proceedings had.” 28 U.S.C. § 753(b).

The Court allowed the government a first look at the transcript and indicated that it was going to hold the government to a very high standard and would not allow the government to manufacture a misleading transcript by hiding the fact of any redactions. Ultimately, the government said that it had *not* revealed classified information at the hearing and removed its request.But the incident speaks volumes about the dangers of allowing the government free rein to claim secrecy in court proceedings and otherwise.

It's great that this ended well, but it seems immensely troubling that the government even sought to do this in the first place. Of course, I would imagine this might lead some to scour the full transcript (embedded below) to see if there's any tidbit of information that the government didn't really mean to claim.

from the what-part-of-the-Fourth-says-'collect-it-all?' dept

Snowden's leaks continue to help build the EFF's case against the NSA. Its lawsuit against the intelligence agency (filed on behalf of several plaintiffs, Carolyn Jewel being named first) was filed in 2008, but has gained significant traction over the past twelve months.

This case is also at the center of the DOJ's on-again, off-again metadata destruction plans, which ultimately resulted in the FISA court backing up the district court's preservation order preventing the destruction of relevant aged-off Section 702 data. The DOJ said one thing and did another, in the end destroying evidence and claiming the NSA's was "too complex" to separate relevant data from the rest of the collection.

This motion is based almost entirely on the government's formal, acknowledged admissions. This is because a Motion for Partial "Summary Judgment," such as this one, cannot be decided if the parties disagree about material facts. It is a common litigation strategy to make a motion based upon the undisputed facts so that the court can rule on an important legal issue, even if there are other facts that are not yet agreed upon.

In essence, we are saying that even if you accept the government's own descriptions of its internet backbone spying, the spying is still unconstitutional.

In the motion, the EFF details how the NSA's untargeted collections violate the Fourth Amendment and could not possibly be covered by any issued warrant.

First, the government unconstitutionally seizes plaintiffs’ Internet communications. Technology at plaintiffs’ Internet service provider, AT&T, automatically creates and delivers to the government a copy of plaintiffs’ online activities, along with those of millions of other innocent Americans—including email, live chat, reading and interacting with websites, Internet searching, and social networking.

Second, the government unconstitutionally searches the content of much of the communications stream it has seized. The government admits that it searches the content of the online communications that it has seized if it believes there is some indication that the origin or destination of the communication is outside the United States.

Seizing the communications of American citizens can only be done with a warrant -- one that specifies the target, time period and other limitations. This is how government agencies stay compliant with the Fourth Amendment. In the NSA's case, all of that is thrown out. There is no targeting to speak of. Everything is collected and sorted through for relevant information after the fact. Because no warrant would reasonably cover the massive amount of data and communications collected, the NSA operates without one. As the EFF points out, FISA court orders are not warrants and the collection of metadata authorized by these are governed by a generous reading of the Third Party Doctrine. What the NSA pulls off the internet backbone are actual communications -- all without a warrant or any associated restrictions other than some belatedly (and arbitrarily) applied minimization procedures.

All of this adds up to a very clear violation of the Fourth Amendment.

In truth, no valid warrant could authorize the government’s admitted practices here. The government’s targeting and minimization procedures are no substitute for the fundamental protections that the Constitution guarantees to all Americans. The ongoing dragnet seizure and search of innocent Americans’ Internet activities violates the Fourth Amendment.

The EFF's filing also includes the following infographic (created by Hugh D'Andrade) that shows how the NSA's backbone collection works.

A crucial part of the Fourth Amendment that often gets overlooked is the protection against unconstitutional seizures. As the EFF points out, when the NSA grabs everything from AT&T's backbone, this constitutes a seizure. The NSA may not consider it to be a "collection" (or run searches) until three steps later, but it grabs communications in bulk before applying any minimization or targeting.

The utilization of a warrant (also a key factor to constitutionality) would require the NSA to determine what it was searching for well before it could move ahead with the seizure. It would also require the agency to specify what it's seizing. Other agencies have asked for bulk, non-specific seizures of electronic data/communications (and permission is sometimes granted), but this process at least allows another party to act as a check against overreach. The NSA operates without warrants, bypassing any external checks against abuse, and simply clones communications traveling these internet backbones.

As is noted several times (and with several citations), these claims are established facts, most of which the government itself has confirmed via statements issued in response to leaks as well as in the many hearings held in the wake of the Snowden leaks. There's really no room for argument, although it's virtually assured the government will find something to justify its bypassing of the Fourth Amendment. The EFF speculates that this argument will revolve around the NSA's very slippery and self-serving definition of "collection."

As we try to make clear in the motion, especially at footnote 13, the government uses a very different definition of "collect" or "acquire" than most people do, limiting "collection" or "acquisition" to stage 4, when the communications are actually stored in the government's database. An easy place to see this is in DNI Clapper's explanation for denying to Senator Wyden that the U.S. government is “collecting” data on millions or hundreds of millions of Americans.

It's up to the court to decide whether or not the NSA's collection is a collection when the NSA says it is -- or when it's actually collected.

The government can also be expected to re-deploy its "special needs" argument, which posits that the good of the few (the NSA) outweighs the good of the many (the American public). The hunt for terrorists should outweigh the public's expectation of privacy, whatever minimal amount is left after the government's exploitation of the Third Party Doctrine. The EFF warns the court about this expected argument, noting that the government's "needs" don't outweigh its obligation to honor its citizens' civil liberties.

Although “the government’s interest in preventing terrorism . . . is extremely high,” the importance of that interest “is no excuse for the dispensing altogether with domestic persons’ constitutional rights.” Al Haramain Islamic Foundation, 686 F.3d at 993; see also Keith, 407 U.S. at 316-21 (rejecting government’s argument that national security required dispensing with the warrant requirement in domestic security surveillance cases). “Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. . . . [¶] . . . [E]ven the war power does not remove constitutional limitations safeguarding essential liberties.” Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 425-26 (1934). Allowing even legitimate national security concerns to override the most fundamental of Fourth Amendment protections—the prohibition on the modern-day equivalent of the despised “general warrant”—would turn the Constitution on its head and destroy the basic civil liberties that the Founders fought to protect.

The bulk metadata collection (Section 215/501) has already had its Constitutionality challenged by one judge. The EFF is seeking a similar decision on the NSA's Section 702 program with this filing. The extra attention of the Snowden-imposed daylight has led to concessions on Section 215 by the NSA. With any luck, Section 702 is in line for similar discussion and modification.

from the something's-badly-broken dept

Last week, we wrote about the latest in the Jewel v. NSA case, where the Justice Department admitted to the EFF that the NSA was still destroying surveillance evidence, despite a temporary restraining order in March ordering it to stop. The EFF had rushed over to the court to get an emergency order to get the DOJ/NSA to stop -- and the DOJ flipped out, arguing that such an order was effectively impossible, since the information was quickly spread throughout many different systems, and stopping the program from deleting unnecessary info that was collected under that program (the so-called minimization efforts) might require the NSA to stop a huge amount of intelligence gathering, just to handle the situation. And, yes, there does appear to be some significant amount of irony in the idea that the DOJ insists that an order that it stop destroying evidence might mean that the NSA would have to stop collecting data in the first place. Either way, the judge was at least convinced enough that the court allowed the NSA to keep destroying evidence while the two sides further brief the issue, for a later ruling on whether or not the restraining order really applies to the information collected under Section 703 of the FISA Amendments Act.

For an agency whose motto is "Collect It All," the NSA's claim that its mission could be endangered by a court order to preserve evidence is a remarkable one. That is especially true given the immense amount of data the NSA is known to process and warehouse for its own future use.

The NSA also argued that retaining evidence for EFF's privacy lawsuit would put it in violation of other rules designed to protect privacy. But what the NSA presents as an impossible choice between accountability and privacy is actually a false one. Surely, the NSA — with its ability to sift and sort terabytes of information — can devise procedures that allow it to preserve the plaintiffs' data here without retaining everyone's data.

The crucial question is this: If the NSA does not have to keep evidence of its spying activities, how can a court ever test whether it is in fact complying with the Constitution?

The ACLU calls this "too big to comply," a play on the infamous "too big to fail" claims towards Wall Street during the 2008 economic crisis. Of course, back in 2008, I made a simple suggestion on the "too big to fail" argument, which would seem to apply equally here. Back then, I pointed out that if banks are "too big to fail," there's a reasonable solution that doesn't involve making them even bigger (which was the government's solution): it was to require them to get small enough to fail again. Basically, the government could offer them bail out money on the condition that the banks be reorganized in a manner that if particular pieces started to fail, it didn't create systemic risk to the entire system. In some forms it wouldn't be all that different than a traditional antitrust breakup. And, yes, there's a lot of complexity hidden within such a proposal, but it seems like the only thing that really made sense (though, unfortunately, no one in the government seemed to agree).

So, shouldn't we take the same approach with the NSA? If its systems are truly "too complex to comply" or "too big to comply" with preservation orders, then shouldn't the court require the NSA to change its systems such that it can actually comply with legal court orders to preserve evidence needed in lawsuits that explore the constitutionality of their surveillance efforts?